Week 3: The Constitution

POLSCI 116

Last week

Democratic citizenship and collective action:

  • Are citizens capable of democracy?
  • What is the social contract?
  • What is collective action and why is it both challenging and necessary?

Getting back to going over quiz answers

Two types of legitimacy? Empirical (do people think it’s legitimate?) and normative (is it publicly justifiable?)

Getting back to going over quiz answers

Challenges in negotiation? Doesn’t work for all issues; private/difficult to observe; potential for domination/power dynamics; not necessarily oriented toward common good

Getting back to going over quiz answers

Why can distributive coalitions win? When benefits are concentrated and costs are diffuse, collective action easier for the (minority) beneficiaries than for the (majority) cost-payers

Getting back to going over quiz answers

The Mancur Olson Doom Loop?

Not just that distributive coalitions get what they want and leave the public worse off

Why is the book called Rise and Decline of Nations?

This week

The Constitution

But first…

Then…

Colonial Self-Government

Landed men in colonies elect legislatures; crown appoints governor.

Legislatures relatively empowered in domestic policy, but:

  • governor retained veto power
  • crown set trade policy
  • crown could intervene in domestic policy

Colonial Political Economy

British empire practiced mercantilism. What’s that?

Goal: maximize exports vs. imports.

Can accomplish this through trade policy. Especially if you can compel colonies to make you their exclusive trading partner.

How it Worked

British extract resources from colonies, sell finished products back to them.

Restrict colonies’ rights to trade with other countries.

  • Navigation Act (1651), Staple Act (1663), Restraining Act (1699)
  • E.g: Colonies send tobacco to UK first, where it can be taxed, before it can be shipped anywhere else

Difficult to prevent informal markets (smuggling, bribes to customs officials, etc.)

~100-150 Years Later…

French and Indian War (1754–1763):

Bit of a misnomer.

North American theater of Seven Years War:

  • French + French colonists vs. England + British colonists
  • Different Native American tribes fought on either side

Aftermath

The British won, but the war was expensive

  • Sugar Act: nominal tax cut on sugar/molasses
    • but actually enforced
    • and explicitly about raising revenue, not regulating trade
  • Stamp Act: tax on paper (enforced via stamp)
  • Quartering Act (not economic, but still)

Which led to protests.

1765

Nine colonies send representatives to “Stamp Act Congress” in New York

Draft list of grievances and codify “no taxation without representation.”

British repealed Stamp Act and revised the Sugar Act, but rejected representation

1767

Townshend Acts:

  • New taxation package, including taxes on tea imports

Led to boycott of British tea (and a black market for Dutch tea – we’ll come back to that)

1770

Boston Massacre: violent crackdown on protestors at Boston Customs House

Quickly influenced public opinion, with help (and some creative liberties) from Paul Revere

Soldiers involved later found not guilty of murder (defended by John Adams!)

1773

Tea Act:

  • Not a new tax!
  • Designed to bail out British East India Company and its 17 million pounds of surplus tea
  • Allowed BEIC to sell directly to colonies and waived taxes on those sales
  • Massively undercut colonial merchants…who had been selling black-market tea

Merchants responded with the Boston Tea Party (and similar protests elsewhere), prompting harsh crackdown

1774-1775

First Continental Congress:

  • All of the colonies except Georgia
  • Not asking for independence yet
  • Resolutions opposing recent crackdowns
  • Declaration of Rights and Resolves
  • Agreement to reconvene if demands not met
  • Fighting started before that could happen

1776-1777

Second Continental Congress

Declaration of Independence: in so many words, revoking the social contract

  • Invokes natural rights
  • Government exists to protect these rights, with consent of the governed
  • If the government isn’t protecting these rights, the people have the right to abolish it

Outreach to France

Articles of Confederation

Articles of Confederation

Weak national government emerged from states:

  • Limited powers
    • No national power to tax, regulate trade/commerce, or raise armies
  • States sovereign within their territories
  • Each state gets one vote in national legislature
  • 9/13 majority required for legislation; amendments must be unanimous
  • No executive to enforce agreements/implement legislation
  • No judiciary to resolve disputes between states

This barely worked during the war

The Critical Period: 1781-1789

Problems with government under the Articles:

  • Getting delegates from nine states (for a quorum) in a room together
  • Getting nine votes for anything
  • Levying taxes
    • National initiatives to be funded by requisition
  • Backing a currency
  • Establishing credibility in trade agreements
  • Implementing what few laws that did pass

Quick Aside

This puts the national government in charge of providing public goods. What are public goods?

  • Non-excludable: I can’t prevent you from using the good once it exists
  • Non-rival: My use of the good doesn’t affect your ability to use it

Public goods: clean air, radio, national defense, open markets, debt reduction, e.g.

Goods that feel public but aren’t technically public: roads, “common-pool resources” like grazing pastures

The Critical Period: 1781-1789

Designates national government in charge of providing public goods. What are public goods?

Does so without empowering national government to enforce state contribution.

  • Requisitions divided national expenditure by state proportion of land value
  • When one state doesn’t contribute, cooperating states paying more than fair share
  • Without national enforcement, states left to do their own game theory on how much to contribute

Shays’ Rebellion

Economic downturn –> credit shortage –> foreclosures on small farmers (still owed for Revolutionary War)

Daniel Shays (not the only leader) and ~1,500 farmers marched on Springfield, MA to block foreclosures

Shays’ Rebellion

Congress of the Confederation authorized national militia and $530,000 appropriation…but only one state (Virginia) contributed any money (< 1/2 of requisitioned).

Massachusetts government didn’t have enough money to raise state militia.

Eventually a privately-funded militia put the rebellion down, but the broader point was already made.

Dougherty, Keith, and Michael Cain. 1997. “Marginal Cost Sharing and the Articles of Confederation.” Public Choice 90(1): 201-213.

Constitutional Convention

Originally called for the purpose of revising the Articles

Two problems to solve:

  • British rule: too much centralized authority
  • Articles: not enough centralized authority

Constitutional Convention

Key points:

  • No such thing as “the” Framers/Founders who speak with one voice
  • Delegates were politicians, not philosophers
  • Cleavages material as well as ideological
  • Remember path dependence
    • Locks in power dynamics present at the time
    • NH showed up late, NY left early, RI skipped

Virginia Plan

What’s in the Virginia Plan?

  • Central government with legislative, executive, and judicial branches
  • Bicameral legislature, proportional by population
  • Lower house of legislature directly elected
  • Upper house nominated by state legislatures
  • Lower house selects upper house, executive, and judiciary
  • Council of Revision can veto legislation, but legislature can override

New Jersey Plan

What’s in the New Jersey Plan?

  • Revise Articles
  • National government gets new powers to levy taxes, regulate commerce, and veto state legislation
  • Unicameral legislature, one vote per state
  • Congress elects executive
  • Supreme Court adjudicates disputes in limited settings

Key point: drafted in response to Virginia Plan.

Cleavages in material interest as much as philosophy.

Compromise

Where did we land?

  • Bicameral legislature
  • Lower house directly elected, proportional
  • Upper house selected by state legislatures, two per state
  • Lower house originates taxation and spending
  • National government supreme over state governments
  • Executive appoints judiciary with “advice and consent” of Senate
  • Executive can veto legislation, 2/3 majority can override veto

Convention Dimensions

Different issues, different cleavages

Jillson, Calvin. 1981. “Constitutional-Making: Alignment and Realignment in the Federal Convention of 1787.” American Political Science Review 75(3): 598-612.

Cleavage 1a: Legislative Representation (General)

Large states (VA, MA, PA, e.g.) vs. small states (NJ, NY, DE, e.g.)

  • House by population, Senate by state

Cleavage 1b: Legislative Representation (Slavery)

Large northern states (MA, PA) vs. large southern states (VA, NC, SC)

  • 3/5ths compromise

Why 3/5? Put slave states near 50% of the House (trending up).

Cleavage 2: Nationalism

Ends (NH, MA, NC, SC, GA) vs. middle

  • Organization and powers of executive
  • Citizenship
  • Federal regulation of commerce and slavery
    • 2/3 of Senate for treaty ratification (state blocs can veto trade agreements)
    • Punt on slave trade for 20 years

Cleavage 3: Federalism

CT, NJ, and MD vs. everyone else

  • Selection of executive by joint ballot (instead of separate electors for House/Senate)
  • Western territories
  • Admission of new states
  • Federal military intervention
  • Ratification procedures

Everyone else wins these.

Cleavage 4: Balancing Authority Within Government

NH, CT, NJ, DE, MD, MA, and GA vs. VA, PA, NC, SC

  • Reassertion of small state power
  • Details on selection of executive
    • House delegations vote if no EC winner (so really by state)

End Result

Every state in some winning and losing coalitions

Final structure acceptable but not ideal for everyone

Key Features: Separation of Powers

Legislative:

  • Taxation
  • War
  • Treaty approval
  • “necessary and proper” laws

Executive:

  • Military
  • Diplomacy
  • Appointments
  • Implementing laws

Judicial:

  • Interpret law/resolve disputes

Key Features: Checks and Balances

Legislative:

  • Confirms Supreme Court justices
  • Impeachment
  • Veto override

Executive:

  • Veto legislation
  • Judicial appointment

Judicial:

  • Judicial review?
  • We’ll come back to that one

Key Features: Federalism

States retain sovereignty and powers not reserved to national government

We’ll talk about that more next week

Two Key Expansions of National Power

Commerce clause: power to regulate interstate commerce


Necessary and proper clause (or “elastic” clause): grants implied powers beyond those specifically enumerated

Ratification

Nine states needed to ratify Constitution.

Battle for public opinion: “Federalists” named themselves to avoid being called “nationalists.”

Ratification

Once again, cleavages material as well as ideological:

Federalists Anti-Federalists
Primary constituencies Merchants, landed rich Agricultural, small farmers/businesses, workers
Policy preferences Centralization and checks on mass politics Decentralization, more frequent elections, referendum and recall
International Affinity British French

Why would merchants have a greater interest in a stronger national government?

You’ve heard of some Anti-Federalists: Patrick Henry, George Mason, James Monroe, Samuel Adams

Ratification

Debate: Publius (Federalist) vs. Brutus and Cato (Anti-Federalist)

Are the Federalist Papers “founding” documents? Sort of, but not officially.

Federalist 10: Dealing with Factions

Point of order: what’s a “faction”? “…number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens.”

What are the primary cleavages Madison highlights as likely to produce factions?

Federalist 10: Dealing with Factions

Where do factions come from?

Freedom x Diversity = Factions that will press private interests (can’t assume “enlightened statesmen”).

Republican checks on “pure democracy” prevent tyranny of majority faction:

  • Elected representatives
  • Large body of diverse interests
  • Delegate local issues to local governments

Federalist 10: Point of Order

What does Madison mean by “pure democracy”?

“a society consisting of a small number of citizens, who assemble and administer the government in person”

Why do pure democracies have trouble managing factions?

Federalist 10: Point of Order

What does Madison mean by “republic”?

“a government in which the scheme of representation takes place” – delegation of government to a small number of elected representatives

Federalist 10: Big Picture

How does Madison think about collective action problems?

Good institutional design directs self-interest toward cooperation, monitoring, and sanction.

Small districts in a big legislature means:

  • Districts with clearer interests to represent
  • Coalition politics necessary to get anything done
    • High transaction costs, low conformity costs

Federalist 10: Transaction Costs

“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison.”

Federalist 51: Distributing Power

“Ambition must be made to counteract ambition,” using human nature to our advantage.

In order to leave the state of nature, even powerful individuals need to cede authority to a government. This works better in a larger “extended republic” with power distributed vertically and horizontally. Why?

Federalist 51: Distributing Power

Giving branches lanes to stay in gives them independent agency

Giving branches checks on each other ensures that none become too powerful…allows government to “control itself.”

Dividing power twice – first between federal and state governments, then between branches of federal government – provides “double security”

The Irony of Federalist 51

“In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”

The Virginia Plan went about this quite differently!

Features of A Madisonian Republic

Extended Republic means:

  • distributed power
  • high transaction costs
  • status quo bias

Why was this a winning argument for Madison’s audience?

How Democratic?

Overwhelming rejection of monarchism

Adopted democratic principles/premises, but skeptical of practical features

No affirmative right to vote, franchise left to states

Bill of Rights

Concession made during ratification debate.

The first two didn’t make it! One found its way…in 1992.

https://www.history.com/news/the-strange-case-of-the-27th-amendment

Bill of Rights

I’m sure you know some of the ten that did.

(1) Free expression and religion; (2) right to bear arms; (3) no quartering; (4) no unreasonable search and seizure; (5) due process; (6) right to speedy trial by jury; (7) jury for civil cases; (8) no cruel and unusual punishment; (9) unenumerated rights to people; (10) unenumerated rights to states.


Many of these will come up again in later weeks on civil rights/liberties and the Courts.

Bill of Rights

Not the Third Amendment.

Multiple Values in Bill of Rights

Liberal (protections for individual freedom):

  • Speech, press, assembly
  • Unreasonable search and seizure
  • Due process

Communitarian (provisions of local control):

  • Religious freedom
  • Militia
  • Jury trial
  • Unenumerated state powers

Amending the Constitution

It’s hard!

A few different pathways. All but the repeal of Prohibition have followed this one:

  • 2/3 of House
  • 2/3 of Senate
  • 3/4 of States
  • President, Supreme Court, and governors excluded

Amendments have tended to happen in spurts (post-Civil War, Progressive Era, Civil Rights Era).

The Politics of the Constitution: Material Interest

Pope, Jeremy, and Soren Schmidt. 2021 “Father Founders: Did Child Gender Affect Voting at the Constitutional Convention?” American Journal of Political Science 65(3): 529-771.

The Politics of the Constitution: Pivotal Players

Does anyone here know who Roger Sherman was?

Dougherty, Keith, and Jac Heckelman. 2006. “A Pivotal Voter from a Pivotal State: Roger Sherman at the Constitutional Convention.” American Political Science Review 100(2): 298.

The Politics of the Constitution: Unresolved Issues

Do we think they knew exactly what these terms meant?

  • “necessary and proper” for congressional jurisdiction
  • “commerce” for regulating states
  • “executive power” for president
  • “high crimes and misdemeanors” for impeachment
  • “good behavior” for judicial terms

The Politics of the Constitution: Unresolved Issues

Expectation of more frequent amendments as new issues arose.

We tend to rely on judicial review instead...but judicial review isn’t in the Constitution itself.

We’ll get to that in Courts week.

Let’s talk about this

Is Madison right about extended republics?


Does the politics and compromise in the Constitution make it more or less impressive?


How successful has the Constitution been at preventing tyrannies of the majority?

For next class

Roche, John. 1961. “The Founding Fathers: A Reform Caucus in Action.”

Linz, Juan. 1990. “The Perils of Presidentialism.

Trende, Sean. “It’s Time to Increase the Size of the House.”

Constitution

A More Perfect Constitution

Reading assignment answers

Why is it surprising the U.S. won the war? Weak central government struggled to coordinate on basic warmaking functions (food, supplies, ammunition, etc.)

Reading assignment answers

Key expansions of national power? Commerce clause (interstate commerce expands over time) and necessary and proper clause (unenumerated powers to Congress)

Reading assignment answers

Anti-Federalists main W? Bill of Rights

Reading assignment answers

“Liberty is to faction what air is to fire”? If you want freedom, factions are a necessary evil

Reading assignment answers

“Double security”? 1) Federalism; 2) separation of powers with checks and balances

A More Perfect Constitution

A More Perfect Constitution

Think outside the box! Some examples:

  • How many branches of government?
  • Interbranch relations?
  • National vs. state power?
  • Legislature(s) size? Election timing?
  • Who’s eligible for which offices?
  • How are which offices selected?
  • Term limits? Who / how many?

Debrief

Ok, let’s unpack that…

  • Did the supermajority requirement affect what you wrote?
  • Do you think any results would have been different under one-delegate-one-vote?
  • What if changes to amendment language could be approved by majority vote (instead of proposing delegation getting a veto)?

For next class…

Federalism

Guest speaker: Rep. Marcia Morey (NC-30)

  • Our state representative

Still read!

  • Logic of American Politcs Chapter 3
  • The Great American Cannabis Experiment
  • (Watch) Crash Course: Federalism